Constructive Possession

The Defendant appealed the trial magistrate’s decision sustaining the charged violation of G.L. 1956 §21-28-4.01 (possession of marijuana, one ounce or less, 18 years or older).  The Defendant contended he was denied his right to an evidentiary hearing under §21-28.6-8, which establishes certain affirmative defenses to a charge of possession of marijuana based upon medical use, and that the trial magistrate misinterpreted the elements of that defense.  Section 21.28.6-8 of the Medical Marijuana Act states when an individual moves for dismissal under the Act, the individual is entitled to an evidentiary hearing to establish that the person has been diagnosed with a medical condition such that “the potential benefits of using marijuana for medical purposes would likely outweigh the health risks for the qualifying patient” and that the defendant “was in possession of a quantity of marijuana that was not more than what is permitted under this chapter to ensure the uninterrupted availability of marijuana for the purpose of alleviating the person’s medical condition or symptoms associated with the medical condition.” The Panel found that the Defendant was given an evidentiary hearing when the trial magistrate determined that the Defendant did not meet the necessary requirements under §21-28.6-8. The Panel, citing the Rhode Island Supreme Court’s decision in State v. DeRobbio, 62 A.3d 1113, 1116 (R.I. 2013), upheld the trail magistrate’s holding that the elements of the affirmative defense were not met because the Defendant did not possess “a registry identification card” issued by the Department of Health, a requirement that cannot be found either in the statute or in the Supreme Court’s decision in DeRobbio.  The Panel found the trial magistrate applied the Act correctly and that the decision was based on legally competent evidence.  Therefore, the Panel denied the Defendant’s appeal.

Town of North Kingston v. D.W., C.A. No. T15-0003 (December 17, 2015).pdf